Case: 20-20194 Document: 00515743801 Page: 1 Date Filed: 02/12/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
February 12, 2021
No. 20-20194
Lyle W. Cayce
Clerk
DM Arbor Court, Limited,

Plaintiff—Appellant,

versus

The City of Houston,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas
USDC No. 4:18-CV-1884

Before Davis, Southwick, and Costa, Circuit Judges.

Gregg Costa, Circuit Judge:
Hurricane Harvey inundated Houston with more than fifty inches of
rain, damaging over 300,000 housing units in the city. Post Harvey, City of
Hous. (2019), http://www.houstontx.gov/postharvey. More homes
flooded in the Houston area during Harvey than in New Orleans during
Hurricane Katrina. Id.
Some of those homes were in the Arbor Court Apartments, a low-
income housing complex north of downtown Houston near Greens Bayou,
which could not contain the water from Harvey. Arbor Court filed this
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No. 20-20194

lawsuit challenging the City’s refusal to grant permits to repair the damaged
units.
The district court held that the suit was not ripe because Arbor Court
had not yet obtained a decision from the final arbiter of Houston permit
requests—the City Council. But since the filing of this appeal, the City
Council has ruled and denied the permits. Arbor Court’s attempt to revive
this suit thus turns on the following question: Can a case ripen while on
appeal?

I.
Under the City of Houston’s Floodplain Ordinance, owners of
property within certain flood-prone areas must obtain a permit from the City
before making substantial repairs to their property. Hous., Tex., Code
of Ordinances ch. 19, art. II, § 19-16(a) (2009) (Floodplain
Ordinance); id. art. I, § 19-2. The City may deny a permit if issuing it
“could result in . . . [d]anger to life or property due to flooding . . . in the
vicinity of the site.” Id. art. II, § 19-19(1).
Following Harvey, Arbor Court sought permits from the City to repair
its property, which is located in the floodplain and even, to some extent, in
the floodway. Initially, the City placed a hold on the permits, finding that the
apartments were too damaged to repair under FEMA Guidelines that prevent
reconstruction that will exceed a certain percentage of the property’s value.
After negotiations over that issue, the City eventually removed the hold. But
before the City had determined whether the permits should issue, Arbor
Court filed this lawsuit, asserting regulatory takings claims—as well as other
constitutional violations—against the City.
Shortly thereafter, the Houston Public Works Director denied Arbor
Court’s permit requests because of the high risk of flooding on the property.
The denial letter noted the complex’s history of floods and explained that its

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“residents are in danger when Greens Bayou rises out of its banks,” as it did
during Harvey. The letter also informed Arbor Court that it could request a
variance or appeal the permit denial to the General Appeals Board and, if
necessary, the City Council. For over a year—454 days—Arbor Court did
neither.
Arbor Court did, however, go on to file two additional complaints in
district court, dropping its takings claims but alleging violations of due
process, equal protection, the Contracts Clause, and state law. When Arbor
Court sought leave to amend a third time to reassert takings claims, the court
denied its motion and dismissed the case without prejudice because Arbor
Court had failed to appeal the permit denial to the City. Following the ruling,
Arbor Court at last appealed through the City’s administrative process.
Meanwhile, the district court realized that it had issued its ruling
prematurely, without allowing Arbor Court to reply to the City’s response to
its motion to amend. The court corrected this oversight and published an
amended opinion that again dismissed the case for lack of subject matter
jurisdiction, concluding that Arbor Court’s claims were not ripe because the
City was still considering its appeal.
A few months after the district court entered its final judgment, the
City Council denied Arbor Court’s permit requests, marking the end of the
permit appeal process.

II.
At the time the district court ruled, Arbor Court’s claims were not
ripe. Ripeness ensures that federal courts do not decide disputes that are
“premature or speculative.” Shields v. Norton, 289 F.3d 832, 835 (5th Cir.
2002) (citing United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir.
2000)). A case becomes ripe when it “would not benefit from any further
factual development and when the court would be in no better position to

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adjudicate the issues in the future than it is now.” Pearson v. Holder, 624 F.3d
682, 684 (5th Cir. 2010) (cleaned up). The ripeness inquiry reflects “‘Article
III limitations on judicial power’ as well as ‘prudential reasons for refusing to
exercise jurisdiction.’” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559
U.S. 662, 670 n.2 (2010) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S.
43, 57 n.18 (1993)). 1
A regulatory takings claim is not ripe until the government has
reached a final decision on the challenged regulation. Williamson Cnty. Reg’l
Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985),
overruled on other grounds by Knick v. Township of Scott, 139 S. Ct. 2162 (2019). 2
Only after the final regulatory decision will a court have before it the facts
necessary to evaluate a regulatory takings claim, such as “the economic
impact of the challenged action and the extent to which it interferes with
reasonable investment-backed expectations.” Id. at 191. When similar
“factual development is necessary” for related claims—like the due process,
equal protection, and Contracts Clause claims Arbor Court alleges—then

1
Constitutional ripeness refers to Article III’s case-or-controversy requirement,
which mandates that an “actual controversy” exist between the parties “at all stages of
review” in federal court. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (cleaned
up). Even when constitutional ripeness is satisfied, however, a court may decide not to
hear a case for prudential reasons, such as “[p]roblems of prematurity and abstractness.”
Buckley, 424 U.S. at 114 (quoting Socialist Lab. Party v. Gilligan, 406 U.S. 583, 588 (1972)).
2
Knick overruled Williamson County’s requirement that a property owner first
litigate a takings claim in state court. 139 S. Ct. at 2167-68. But it did not alter the
requirement for a final decision from the regulator before any litigation is commenced. Id.
at 2169 (“[T]he developer [in Williamson County] still had an opportunity to seek a variance
from the appeals board, so any taking was therefore not yet final. . . . Knick does not
question the validity of this finality requirement, which is not at issue here.”); see also
Campbell v. United States, 932 F.3d 1331, 1340 n.5 (Fed. Cir. 2019) (noting that the finality
requirement “of Williamson remains good law under Knick”).

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those claims are also not ripe until the regulator has made a final decision.
John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir. 2000).
For City of Houston development permits, the City Council has the
final say. Floodplain Ordinance art. II, § 19-23(g). When this matter
was pending in district court, the Council had not yet reached a decision
about Arbor Court’s permits. Because the City had not taken a “final,
definitive position” about the permits, the asserted claims were not ripe.
Williamson Cnty., 473 U.S. at 191; see Hidden Oaks Ltd. v. City of Austin, 138
F.3d 1036, 1041–42 (5th Cir. 1998) (affirming dismissal of takings claim
because plaintiff did not “follow through with any formal process of appeal”
with the city). So the district court got it right—this dispute was not ripe
when it entered judgment dismissing the case, and it would have been futile
for Arbor Court to amend its complaint to add an additional unripe claim.
Ordinarily our conclusion that the district court ruled correctly would
be the end of the matter. An affirmance would follow. But an idiosyncratic
feature of ripeness law requires a different result.
As “ripeness is peculiarly a question of timing, it is the situation now
rather than the situation at the time of the District Court’s decision that must
govern.” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974);
see Anderson v. Green, 513 U.S. 557, 559 (1995); Buckley v. Valeo, 424 U.S. 1,
113–14 (1976). We have repeatedly applied this principle that “[i]n weighing
a ripeness claim, an appellate court may properly consider events occurring
after the trial court’s decision.” New Orleans Pub. Serv., Inc. v. Council of City
of New Orleans, 833 F.2d 583, 586 n.2 (5th Cir. 1987); see Lower Colo. River
Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 926 (5th Cir. 2017); Willbros
RPI, Inc. v. Continental Cas. Co., 601 F.3d 306, 313–14 (5th Cir. 2010) (per
curiam); see also 13B Charles Alan Wright et al., Federal
Practice and Procedure § 3532.7 (3d ed. 2020) (“Ripeness should

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be decided based on the basis of all the information available to the court.
Intervening events that occur after decision in lower courts should be
included, just as must be done with questions of mootness.”).
Allowing a case to ripen on appeal is in seeming tension with the
venerable rule that “the jurisdiction of the [c]ourt depends upon the state of
things at the time of the action brought.” Mollan v. Torrance, 9 Wheat. 537,
539 (1824); see Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71
(2004) (describing the “time-of-filing rule” as “hornbook law”). It is hard
to see how jurisdiction can come into existence during the appeal. A case
ripening based on post-trial-court developments thus makes more sense
when the ripeness problem is rooted in prudential, rather than constitutional,
concerns. Progressive Mountain Ins. Co. v. Middlebrooks, 805 F. App’x 731,
736 (11th Cir. 2020) (per curiam) (“It may be that the only way a case can
legitimately ‘ripen’ after a district court judgment is if ripeness involves
prudential considerations and is not a purely constitutional doctrine.”).
When the problem is only one of prudential ripeness, the court always had
jurisdiction; prudence just compelled the court to not yet exercise it. See
Socialist Lab. Party v. Gilligan, 406 U.S. 583, 588 (1972) (“Problems of
prematurity and abstractness may well present ‘insuperable obstacles’ to the
exercise of the Court’s jurisdiction, even though that jurisdiction is
technically present.” (quoting Rescue Army v. Municipal Court, 331 U.S. 549,
574)); Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86,
88–89 (5th Cir. 2011) (noting that prudential ripeness concerns do not defeat
a court’s jurisdiction).
It is not surprising, then, that the Supreme Court articulated the rule
that a case may ripen on appeal in a prudential ripeness case. Regional Rail
Reorganization, 419 U.S. at 146–47; see Catholic Soc. Servs., Inc., 509 U.S. at
57 n.18 (categorizing Regional Rail Reorganization Act Cases as involving
prudential ripeness). And we can rest easier in applying that rule here

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because the final decisionmaker requirement for takings claims is motivated

by prudential concerns about the fitness of the issue for judicial review.
Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 734 (1997) (describing
Williamson County’s finality requirement as “prudential”); Rosedale, 641
F.3d at 88–89 & n.2 (noting that “the Supreme Court has . . . explicitly held
that Williamson County’s ripeness requirements are merely prudential, not
jurisdictional”).
But perhaps we have discretion, rather than a duty, to consider
whether a case has become ripe based on events occurring after the trial court
rules. The City argues our authority is discretionary, and that we should not
choose to revive these claims because the lack of ripeness in the trial court
was solely the result of Arbor Court’s delay in appealing the permit denials.
To remand the claims because the City Council has now denied the permits
would, in the City’s view, “reward” Arbor Court for its dilatory conduct.
Although some of the ripeness-on-appeal caselaw is couched in the
language of discretion, see New Orleans Pub. Serv., 833 F.2d at 586 n.2, our
best reading of the decisions—especially those from the Supreme Court—is
that “[i]ntervening events that occur after decision in lower courts should be
included” when an appellate court assesses ripeness. 13B Wright, supra,
§ 3532.7; Regional Rail Reorganization, 419 U.S. at 140. Supporting this view
is the City’s inability to cite any case in which an appellate court declined to
find a dispute ripe when postjudgment events had made it so. And we have
an obligation to exercise the jurisdiction Article III and Congress grant us
when any impediments, such as prudential concerns, have been eliminated.
Cf. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813,
817 (1976) (recognizing that abstention “is an extraordinary and narrow
exception” to the “virtually unflagging obligation of the federal courts
to exercise the jurisdiction given them” (quoting County of Allegheny v. Frank
Mashuda Co., 360 U.S. 185, 188–89 (1959)). Everyone agrees that the

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impediment that existed in the district court—the lack of a final decision

from the City Council—is now absent. As a result, this case has become ripe
and should be remanded for consideration of the merits. Regional Rail
Reorganization, 419 U.S. at 140 n.25.
The remand should not be viewed as a “reward” to Arbor Court. As
is proper when a dispute is not ripe, the district court dismissed the case
without prejudice. A without-prejudice dismissal allows the filing of a new
lawsuit once the case ripens. In fact, Arbor Court did just that after the City
Council denied the permit; there is now a second suit in district court (though
it was stayed pending the outcome of this appeal). We have trouble seeing
the practical difference between Arbor Court’s pursuing the merits of its
claims on remand in this case as opposed to going forward in the recently filed
case. Either way, Arbor Court will be able to litigate its claims. The City is
understandably frustrated that it had to devote resources to litigating
ripeness because Arbor Court filed this suit prematurely. But Arbor Court’s
premature filing of its claims does not appear to have benefitted it in any way;
pursuit of this appeal rather than just proceeding in the newly filed suit has
only delayed resolution of the merits. In any event, the consequence of filing
an unripe claim is never a permanent bar on pursuing the claim. The claim
can always be brought once it ripens, whether that is done via a remand in the
original case or in a new lawsuit. Arbor Court seeks the former path, and the
law requires that we remand this now-ripe case.
***
The district court correctly concluded that this case was not ripe
because the City Council had not yet denied the permits. That warranted
dismissal of the pending claims and the denial of Arbor Court’s attempt to
add yet another unripe claim. But now that the Council has acted, the claims

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are ripe. This leads to the peculiar result of sending a case back to the district
court even though it got everything right.
We VACATE the judgment dismissing this case and REMAND for
further proceedings. We also VACATE the denial of Arbor Court’s motion
for leave to file a third amended complaint as it was based, at least in part, on
the futility of that amendment while the takings claim was not ripe. We
express no opinion on whether leave should be granted under the current
posture of this case.